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2004 (4) TMI 587
Issues Involved:
1. Legality of the notification dated 31st December 1999 issued by the Lt. Governor of the National Capital Territory of Delhi.
2. Ultra vires nature of the notification under Section 67 of the Motor Vehicles Act, 1988.
3. Imposition of conditions on private bus operators to subsidize Delhi Transport Corporation (DTC) losses.
4. Validity of the condition requiring private operators to honor DTC-issued concessional passes.
Detailed Analysis:
1. Legality of the Notification:
The appellants challenged the notification dated 31st December 1999 issued by the Lt. Governor of Delhi, which revised fare structures and imposed additional charges on private bus operators. The notification also mandated that private operators honor all DTC-issued passes. The High Court upheld the notification, leading to the present appeal.
2. Ultra Vires Nature of the Notification:
The appellants contended that the notification was ultra vires the powers of the State Government under Section 67 of the Motor Vehicles Act, 1988. They argued that the notification imposed unreasonable restrictions on their fundamental right to trade and business under Article 19(1)(g) of the Constitution of India. The Supreme Court examined whether the State Government had the authority under Section 67 to impose such conditions.
3. Imposition of Conditions on Private Bus Operators:
The notification required private operators to pay Rs. 2500 per month for bus queue shelters and Rs. 5000 per month for using bus terminals to the DTC. The appellants argued that the DTC, being a statutory corporation, should not impose its financial burdens on private operators. The Court noted that the permit conditions had been revised in consultation with the DTC and were within the powers of the State Government and STA as per Section 72(2) of the Act.
4. Validity of the Condition Requiring Private Operators to Honor DTC-issued Concessional Passes:
The most contentious issue was the requirement for private operators to honor all DTC-issued concessional passes. The appellants argued that this condition was an attempt to subsidize DTC's losses and was not justified under the Act. The Court agreed, stating that the permit conditions only required honoring concessional passes authorized by the STA, not all DTC passes. The Court found Paragraph 3(b) of the notification, which mandated honoring all DTC passes, to be ultra vires and illegal.
Conclusion:
The Supreme Court held that while the notification's provisions regarding fare revisions and service charges were valid, the condition requiring private operators to honor all DTC passes was ultra vires and unenforceable. The Court directed the respondents to formulate an appropriate scheme within four months to provide relief to student pass holders. The judgment of the High Court was modified, and the appeal was allowed to the extent specified. There was no order as to costs.
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2004 (4) TMI 586
Whether impugned judgment a learned Single Judge of the Delhi High Court while upholding that the respondent- accused's conviction under the Prevention of Corruption Act, 1988 was in order, further held him to be entitled to the benefits available under Section 360 of the Code of Criminal Procedure, 1973 (in short the 'Code') legally correct?
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2004 (4) TMI 585
Issues:
1. Whether the hotel building and various fittings should be considered part of the plant for depreciation calculation.
Analysis:
The case involved an application under section 256(1) of the Income-tax Act, 1961, where the Tribunal referred the question of whether the hotel building and various fittings like sanitary and electric fittings should be treated as part of the plant for depreciation. The assessee, a Limited Company running hotels, claimed depreciation on these assets as permissible on plant. The I.T.O. rejected the claim, but the CIT(A) accepted it, a decision upheld by the Tribunal.
The counsel for the respondent did not provide any instruction, while the department's counsel argued that the issue of whether a building can be considered a plant for depreciation had been settled by the Apex Court in a previous case, where it was held that a building used as a hotel or cinema theatre does not qualify for depreciation as permissible in the case of 'plant'. Additionally, the counsel pointed out a Bombay High Court decision that stated electric fittings and installation of call bells cannot be construed as part of the plant.
Based on the precedents cited, the Court concluded that the Tribunal erred in considering the hotel building and sanitary fittings as part of the plant for depreciation purposes. Therefore, the Court ruled in favor of the Revenue and against the assessee, answering the question in the negative. Consequently, the reference application was disposed of in favor of the revenue.
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2004 (4) TMI 584
Issues:
1. Declaration of surplus area under Himachal Pradesh Ceiling on Land Holdings Act, 1972.
2. Power of Financial Commissioner to exercise suo moto power after withdrawal of appeal.
3. Delayed exercise of power under Section 20(3) of the Act.
Analysis:
1. The dispute revolved around the declaration of surplus land under the Himachal Pradesh Ceiling on Land Holdings Act, 1972. The Collector initially declared 9,000 bighas of land as surplus belonging to the original owner, leaving 1,000 bighas for the heirs. Subsequently, the Financial Commissioner set aside the Collector's order, leading to a writ petition by the heirs challenging the decision.
2. The main contention was regarding the power of the Financial Commissioner to exercise suo moto power after the State withdrew its appeal against the Collector's order. The High Court held that once the State withdrew the appeal, the Financial Commissioner could not act independently. However, the Supreme Court disagreed, stating that the Financial Commissioner, as a statutory authority, had the discretion to review the order under Section 20(3) of the Act, irrespective of the State's decision to withdraw the appeal.
3. Another issue raised was the delayed exercise of power by the Financial Commissioner, who acted 15 years after the Collector's order. While Section 20(3) allows for action at any time, the Supreme Court emphasized that such powers must be exercised within a reasonable timeframe. In this case, the prolonged delay of 15 years rendered the Financial Commissioner's order invalid, as it undid the finality of the Collector's decision. Consequently, the Supreme Court set aside the Financial Commissioner's order and reinstated the Collector's decision, citing the unreasonable delay as the basis for the ruling.
Judgment:
The Supreme Court partially allowed the appeal, overturning the High Court's decision on the Financial Commissioner's power to act suo moto but finding fault with the delayed exercise of power. As a result, the Financial Commissioner's order was set aside, and the Collector's decision was upheld. Additionally, in a related appeal, the High Court's order was maintained, leading to the dismissal of the State's appeal. No costs were awarded in both cases.
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2004 (4) TMI 583
Whether the High Court’s fixation of the pension under clause 2(a) is correct?
Whether the High Court was correct in not adding the figures under para 2 cls. (a) and (b) of Schedule I, Part III of the Act in order to find out the revised amount of pension and whether a ceiling was imposed under clause 2(b) ?
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2004 (4) TMI 582
Whether the 3rd Special Court, Calcutta appointed under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 for trying offences under the Prevention of Corruption Act, 1947 (for short Act of 1947) had no jurisdiction to try the respondents for the alleged offences after coming into force of the Prevention of Corruption Act, 1988 (for short Act of 1988) w.e.f. 9th September, 1998?
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2004 (4) TMI 581
Issues:
1. Validity of notice under Section 22 of the U.P. Sales Tax Act.
2. Interpretation of notifications regarding taxability of oil cake and de-oiled cake.
3. Impact of dismissal of Special Leave Petition (S.L.P.) on the judgment.
4. Application of Sections 21 and 22 of the U.P. Sales Tax Act.
Issue 1: Validity of notice under Section 22 of the U.P. Sales Tax Act
The petitioner, engaged in the business of de-oiled cake production, challenged an impugned notice issued under Section 22 of the U.P. Sales Tax Act in relation to the assessment years 1981-82, 1982-83, and 1983-84. The notice was contested on the grounds that there was no apparent error on record warranting its issuance. The petitioner relied on a previous judgment exempting the sale of certain products from sales tax. However, subsequent notifications altered the taxability of oil cake and de-oiled cake, making them subject to taxation. The High Court held that the non-imposition of tax on de-oiled cake transactions during the relevant assessment years was a rectifiable mistake under Section 22, rendering the impugned notices valid.
Issue 2: Interpretation of notifications regarding taxability of oil cake and de-oiled cake
The court analyzed a series of notifications starting from 1956, which exempted oil cake under Section 4 of the Act but later subjected it to taxation at varying rates. Notably, de-oiled cake was excluded from the category of oil cake in a subsequent notification. The court concluded that the taxability of de-oiled cake was established by subsequent notifications, and the assessing authority's failure to impose tax on de-oiled cake transactions during the relevant assessment years was a correctable error under Section 22.
Issue 3: Impact of dismissal of Special Leave Petition (S.L.P.) on the judgment
The petitioner argued that the dismissal of an S.L.P. by the Supreme Court did not amount to merger, citing relevant case law. The court agreed with this position and emphasized that the order dismissing the S.L.P. did not provide reasons. Therefore, the dismissal of the S.L.P. against the earlier judgment did not affect the validity of the impugned notices issued under Section 22 of the Act.
Issue 4: Application of Sections 21 and 22 of the U.P. Sales Tax Act
The court distinguished between Sections 21 and 22 of the U.P. Sales Tax Act, highlighting that the limitations present in Section 21 did not apply to Section 22. Drawing parallels with the Income Tax Act, the court emphasized that errors in applying tax rates could be corrected under Section 22. Relying on precedent and legal principles, the court found no merit in the writ petitions and dismissed them accordingly.
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2004 (4) TMI 580
Issues Involved:
1. Extent of regulation on unaided private institutions.
2. Interpretation and application of the Delhi School Education Act, 1973.
3. Autonomy of private unaided educational institutions in fee structure and administration.
4. Validity of the High Court's directions and the Duggal Committee's recommendations.
5. Utilization of surplus funds by private unaided schools.
6. Role of courts in regulating private unaided educational institutions.
Detailed Analysis:
1. Extent of Regulation on Unaided Private Institutions:
The core question in these appeals is the extent to which unaided private institutions can be subjected to regulations. The Supreme Court emphasized that while private educational institutions have the fundamental right to establish and administer educational institutions under Article 19(1)(g) of the Constitution, this right is subject to reasonable restrictions imposed by law.
2. Interpretation and Application of the Delhi School Education Act, 1973:
The Delhi School Education Act, 1973, regulates school education in Delhi, including government, minority, aided, and unaided private institutions. The Act provides for recognition (Section 4), a scheme of management (Section 5), payment of salaries (Section 10), and regulation of fees (Section 17). However, the Act does not provide specific regulations for the fee structure of unaided recognized schools, allowing them more autonomy.
3. Autonomy of Private Unaided Educational Institutions in Fee Structure and Administration:
The judgment referenced the T.M.A. Pai Foundation case, which established that private unaided educational institutions should have autonomy in matters such as student admission, fee structure, and staff appointments. The Court reiterated that while these institutions should not engage in profiteering, they are entitled to generate reasonable surplus for the development and expansion of the institution.
4. Validity of the High Court's Directions and the Duggal Committee's Recommendations:
The High Court had issued directions based on the Unni Krishnan case, which were found to be beyond the legislative scheme of the Delhi School Education Act. The Duggal Committee's recommendations, which led to a circular dated 15th December 1999, were also deemed beyond the scope of the Act and the Rules. The Supreme Court held that any control or regulation must be imposed by legislative act, not by executive instruction.
5. Utilization of Surplus Funds by Private Unaided Schools:
Rule 177 of the Delhi School Education Rules, 1973, allows unaided recognized schools to utilize surplus funds for capital or contingent expenditure, scholarships, establishment of other recognized schools, or assisting other educational institutions under the same management. The Court emphasized that these provisions should not be narrowly interpreted and that the utilization of surplus funds for establishing new schools is permissible.
6. Role of Courts in Regulating Private Unaided Educational Institutions:
The Supreme Court highlighted the limitations of judicial intervention in policy and public administration, noting that courts should not impose additional restrictions beyond what is provided in the statute. The Court stressed that the legislative scheme must be strictly implemented and enforced, and any further restrictions should be imposed by the legislature, not the judiciary.
Conclusion:
The Supreme Court allowed the appeals, emphasizing the autonomy of private unaided educational institutions in fee structure and administration, and invalidated the High Court's directions and the Duggal Committee's recommendations. The judgment reinforced the principle that while private educational institutions must not engage in profiteering, they are entitled to generate reasonable surplus for their development and expansion.
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2004 (4) TMI 579
Assessment of tax liability and capital gains - Claim of benefits u/s 54F - Revisional jurisdiction and powers of the Commissioner u/s 264 - Non-disclosure of certain facts in the Income tax return - sale of the land and subsequent purchase of l/5th share in the house - HELD THAT:- A bare reading of section 264 makes it abundantly clear that the Commissioner has discretion to invoke the revisional jurisdiction. However, once he entertains a revision he has the power to call for the record of any proceedings under this Act and is also entitled to make any inquiry himself or cause any inquiry to be made and pass such order as he thinks fit. The only impediment on the power of the revisional authority is that he will not pass any order prejudicial to the assessee. Respondent No. 1 has much wider power u/s 264. It does not circumvent and confine the power of the revisional authority in any manner.
It was established before the revisional authority that the capital gain on the sale of land was utilized for the purchase of a residential house within time and the consideration for the purchase of the house was much more than the amount of capital gain. The assessee had no liability to pay tax and was entitled to benefit u/s 54F of the Income Tax Act. It is also admitted position that the petitioner had failed to claim the benefit in her return but an effort was made to over-come the mistake before the revisional authority. Respondent No. 1 has not disputed the sale and purchase of the House as the same is evidenced by documentary evidence duly registered before the Competent authority. It is also admitted position that the petitioner had no remedy before the assessing authority after the assessment order was passed. The revisional jurisdiction was invoked within the prescribed time. The revisional authority having widest possible powers under section 264 was required to hold an inquiry or cause any inquiry to be held and consider the question of purchase of the property and proceeded to comply the provisions of section 54F. The reasoning given by the revisional authority is only technical.
Though the assessing authority was not aware of the purchase of the property by the petitioner and proceeded on the basis of the admitted facts disclosed in the return. However, the revisional authority could not be oblivious of its duty to accept the contention of the assessee when the facts were brought to its notice about the capital gain being not chargeable to Tax under law. What to say of its duty to advice the assessee the revisional authority rejected the contention of the petitioner only on technical grounds. When the substantive law confers a benefit on the assessee under a statute, it cannot be taken away by the ad judicatory authority on mere technicalities.
It is settled proposition of law that no Tax can be levied or recovered without authority of law. Article 265 of the Constitution of India and Section 114 of the State Constitution imposes an embargo on imposition and collection of tax if the same is without authority of law. Admittedly, on the basis of facts disclosed before the revisional authorities and this Court, the petitioner is not liable to tax on the capital gain.
Once, it is found that the petitioner has no tax liability, the respondents cannot be permitted to levy the tax and collect the same in contravention to Article 265 of the Constitution of India, which provides a constitutional safe-guard on levy and collection of tax.
Conclusion: The court concluded that the petitioner was not liable to pay tax on the capital gain as she had utilized the gain for purchasing a residential house within the specified period. The revisional authority should have considered this fact and granted relief. The court directed the respondent to reassess the taxable income of the petitioner, considering the benefit u/s 54F, and pass an appropriate order.
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2004 (4) TMI 578
Whether there is any person by name Digumarthi Premchand, Journalist, r/o. Narayanaguda and if such a person is available, cause his production before this Court on or before 19-9- 1997?
Whether if there is no such person by name Digumarthi Premchand, the sixth respondent shall investigate and find out as to under what circumstances this writ petition came into existence and the person or persons responsible for filing the same?
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2004 (4) TMI 577
Issues Involved:
1. Constitutionality of Rule 11 of the Kerala High Court Rules.
2. Violation of Articles 14 and 19(1)(g) of the Constitution of India.
3. Usurpation of powers of adjudication and punishment from the Bar Councils.
4. Principles of natural justice and automatic application of Rule 11.
5. Contempt jurisdiction of the court.
6. Distinction between contempt of court and misconduct by an advocate.
7. Applicability of the Advocates Act and the Code of Criminal Procedure.
8. Validity of Rule 11 under Article 12 of the Constitution.
Issue-wise Detailed Analysis:
1. Constitutionality of Rule 11 of the Kerala High Court Rules:
The petition challenges Rule 11 of the Kerala High Court Rules, which prohibits an advocate found guilty of contempt from appearing in court until the contempt is purged. This rule was previously upheld by the Supreme Court in Pravin C. Shah Vs. K.A. Mohd. Ali and Another and Ex-Capt. Harish Uppal Vs. Union of India and Another.
2. Violation of Articles 14 and 19(1)(g) of the Constitution of India:
The petitioner argued that Rule 11 violates Articles 14 (equality before the law) and 19(1)(g) (right to practice any profession) of the Constitution. It was contended that the rule impinges on the powers of the Bar Councils under the Advocates Act and violates principles of natural justice due to its automatic application without further hearing.
3. Usurpation of Powers of Adjudication and Punishment from the Bar Councils:
The petitioner argued that the Bar Council of India, under Section 35 of the Advocates Act, has the authority to punish advocates for misconduct. Therefore, Rule 11, which imposes a prohibition on practice following a contempt decision, usurps this power.
4. Principles of Natural Justice and Automatic Application of Rule 11:
The petitioner contended that Rule 11 violates principles of natural justice as it does not provide an opportunity for further hearing before imposing a prohibition on practice. The court held that Rule 11 is legislative in character and its validity has been previously upheld. The court further noted that principles of natural justice cannot be stretched too far and must be balanced with statutory provisions.
5. Contempt Jurisdiction of the Court:
The court discussed the inherent power of the courts to punish for contempt, as recognized universally and under Articles 129 and 215 of the Constitution. The court emphasized that the law of contempt is governed by statutes like the Contempt of Courts Act, 1971, and the inherent powers of the courts to maintain the dignity and orderly functioning of the judiciary.
6. Distinction Between Contempt of Court and Misconduct by an Advocate:
The court distinguished between punishment for contempt and punishment for misconduct. It held that while the Bar Council has authority over professional misconduct, the courts retain the power to regulate conduct within the court, including prohibiting an advocate from practicing until they purge themselves of contempt.
7. Applicability of the Advocates Act and the Code of Criminal Procedure:
The court noted that Section 30 of the Advocates Act, which provides the right to practice, has not yet been brought into force. Section 34 empowers the High Court to make rules regarding the conditions under which an advocate can practice. The court also discussed relevant provisions of the Code of Criminal Procedure, which allow for punishment of contemptuous conduct.
8. Validity of Rule 11 under Article 12 of the Constitution:
The court held that Rule 11 is not unconstitutional and does not violate Article 12. The court emphasized that Rule 11 concerns the dignity and orderly functioning of the courts and is not subject to the disciplinary jurisdiction of the Bar Councils.
Conclusion:
The Supreme Court upheld the constitutionality of Rule 11 of the Kerala High Court Rules, dismissing the writ petition. The court concluded that Rule 11 does not violate Articles 14 or 19(1)(g) of the Constitution and is not ultra vires Article 12. The petition was dismissed with no order as to costs.
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2004 (4) TMI 576
Issues Involved:
1. Revision of Property Tax by the Corporation.
2. Compliance with procedural requirements under Sections 218 to 220 of the Hyderabad Municipal Corporation Act.
3. Validity of assessment and demand notices issued by the Corporation.
4. Applicability of Section 684 to rectify procedural irregularities.
5. Interpretation of mandatory provisions in taxation statutes.
Issue-wise Detailed Analysis:
1. Revision of Property Tax by the Corporation:
The Corporation intended to revise the property tax within its jurisdiction in 1993. A draft notification was issued on 17-02-1993, which became subject to proceedings before the High Court and the Supreme Court. After the Supreme Court order dated 23-04-2001, the Corporation resumed the process and issued another draft notification on 16-04-2001. Representations were received, and a final notification was issued on 22-09-2001. The General Body of the Corporation passed a resolution on 03-10-2001 to reduce the rates, leading to a revised notification on 20-10-2001.
2. Compliance with Procedural Requirements under Sections 218 to 220 of the Act:
The Corporation did not publish notifications as required under Sections 218 and Sub-section (1) of Section 220. The assessment process involves preparing an Assessment Book under Section 214, giving public notice under Section 218, allowing inspection under Section 219, and inviting complaints under Section 220. The Corporation failed to follow these steps, which are mandatory for the validity of the assessment process.
3. Validity of Assessment and Demand Notices Issued by the Corporation:
The Corporation issued special notices to assessees based on the final notification under Rule 7(3) before amending it on 20-10-2001. These notices were issued without complying with Sections 218 and 220(1). The courts below had differing views on whether this non-compliance was a mere irregularity or a fundamental illegality. The High Court held that the non-compliance with Sections 218 and 220(1) vitiates the entire assessment process, making the demand notices invalid.
4. Applicability of Section 684 to Rectify Procedural Irregularities:
Section 684 allows for rectification of informalities, clerical errors, omissions, or other defects in assessments. However, the High Court held that the total non-compliance with mandatory provisions such as Sections 218 and 220(1) cannot be treated as a mere irregularity or omission. Section 684 is intended for minor errors and does not cover the complete failure to follow essential procedural steps in the taxation process.
5. Interpretation of Mandatory Provisions in Taxation Statutes:
The Court emphasized the principle that taxation statutes must be strictly construed. The requirement for strict compliance with procedural provisions ensures that no tax is levied without clear legal authority. The Court referred to established legal principles and precedents, including the need for public participation and transparency in the assessment process. The failure to publish notifications under Sections 218 and 220(1) denied assessees the opportunity to inspect the Assessment Book and lodge complaints, which is a significant procedural safeguard.
Conclusion:
The High Court concluded that the Corporation's failure to comply with Sections 218, 219, and 220(1) invalidated the entire assessment process. The assessments and demand notices issued without following these mandatory provisions were set aside. The Corporation was directed to levy the tax only after complying with the prescribed procedure. Appeals by the Corporation were dismissed, and those by the assessees were allowed.
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2004 (4) TMI 575
Could not this Court exercising appellate jurisdiction under Article 136 of the Constitution, have directed a communication being addressed to the High Court calling for information with the object of (I) ascertaining the facts, (ii) securing compliance with the direction contained in the order dated 28.10.2002?
Whether the Division Bench of the High Court is justified - in law and on considerations of propriety - to make all those observations as have been extracted and reproduced hereinabove?
Whether it is proper for the High Court to issue a direction to the Registrar General of Supreme Court of India to place its communication for consideration before a particular Bench of this Court?
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2004 (4) TMI 574
Whether the judgment rendered by learned Single Judge of the Kerala High court upholding appellant's conviction under Section 5(2) of the Prevention of Corruption Act, 1947 (in short the 'Act') and Section 409 of the Indian Penal Code, 1860 (in short the 'IPC') correct wherein he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹ 1,00,000/- with a default stipulation of 6 months imprisonment and sentence of one year for the offence under the IPC?
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2004 (4) TMI 573
Supreme Court rejected the application for stay and admitted the appeal in the case. (Citation: 2004 (4) TMI 573 - SC)
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2004 (4) TMI 572
Issues Involved:
1. Demand for dowry and motive for murder.
2. Nature of death (homicidal or suicidal).
3. Presence of accused at the crime scene.
4. Credibility of witnesses and evidence.
5. Plea of alibi by the accused.
6. Reasoning behind the High Court's reversal of acquittal.
Detailed Analysis:
1. Demand for Dowry and Motive for Murder:
The judgment notes that there was a demand for dowry, which was not fulfilled, leading to annoyance on the part of Narendrasingh. This provided a motive for the murder. The court stated, "there was a demand of dowry which was not fulfilled. Narendrasingh was annoyed. Thus, there was motive for murder."
2. Nature of Death (Homicidal or Suicidal):
The court acknowledged that Bimlabai met a homicidal death by throttling, followed by being set on fire to cause the disappearance of evidence. The judgment states, "Vimlabai met homicidal death by throttling and thereafter was set to fire. The setting of fire must have been with intent to cause disappearance of evidence for screening the offender."
3. Presence of Accused at the Crime Scene:
The court considered the presence of at least three individuals (Narendrasingh, Gulbadanbai, and Kusum) in the house when the body was found. It was noted that no alarm was raised by Bimlabai, suggesting that the murderer was likely a close relation, probably her husband. The judgment reads, "At least three persons, i.e., Narendrasingh, Gulbadanbai and Kusum were present in the house in the afternoon and till the body was found inside the kitchen room... the person (murderer) must have been close relation of her and in all probability the husband."
4. Credibility of Witnesses and Evidence:
The High Court's reliance on the post-mortem report was questioned due to cuttings and over-writings. The defense argued that the presence of blood in the respiratory tract could obscure carbon particles, making it difficult to definitively conclude the cause of death as asphyxia. The judgment states, "the post mortem report should not have been relied upon by the High Court having regard to the fact that the burns have been held to be ante mortem in nature although the cause of death was said to be asphyxia."
5. Plea of Alibi by the Accused:
The appellants claimed they were attending a marriage ceremony at the time of the incident. The court noted that the plea of alibi was not disproved by the prosecution. The judgment mentions, "presence of accused at the time of death cannot be said to have been proved by the prosecution as the court witnesses categorically stated about their presence at the relevant time at the house of Illias Khan."
6. Reasoning Behind the High Court's Reversal of Acquittal:
The High Court reversed the acquittal based on circumstantial evidence, but the Supreme Court found that the prosecution failed to prove a vital link in the chain of events. The judgment states, "the entire case is based on circumstantial evidence... a vital link in the chain, viz., possibility of the appellant No. 1 committing the offence, closing the door and then sneaking out of the room from one of the two places had not been proved by the prosecution."
Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's judgment. The court emphasized the principle that benefit of doubt belongs to the accused, especially in cases based on circumstantial evidence. The judgment concludes, "We, thus, having regard to the post mortem report, are of the opinion that the cause of death of Bimlabai although is shrouded in mystery but benefit thereof must go to the appellants... Accordingly, the appeal is allowed."
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2004 (4) TMI 571
Issues Involved:
1. Whether an order of injunction is automatically revived upon the restoration of a suit.
2. Distinction between incidental and supplemental proceedings under the Code of Civil Procedure.
3. The effect of dismissal and subsequent restoration of a suit on interlocutory orders.
Issue-wise Detailed Analysis:
1. Automatic Revival of Injunction Orders:
The primary issue in this appeal is whether an order of injunction automatically revives upon the restoration of a suit. The Supreme Court examined the statutory provisions and judicial precedents to determine that an order of injunction, being a supplemental proceeding, does not automatically revive upon the restoration of the suit. The Court emphasized that such orders are not merely ancillary but are supplemental in nature, intended to prevent the ends of justice from being defeated. The Court concluded that a fresh order is required for the revival of an injunction upon restoration of the suit.
2. Distinction Between Incidental and Supplemental Proceedings:
The judgment highlights the distinction between incidental and supplemental proceedings under the Code of Civil Procedure. Incidental proceedings are those that aid the final proceedings and have a direct bearing on the result of the suit. Supplemental proceedings, on the other hand, are initiated to prevent the ends of justice from being defeated and may not necessarily impact the final outcome of the suit. The Court noted that incidental orders, being ancillary, may revive upon the restoration of a suit, whereas supplemental orders, such as injunctions, require a fresh order for revival.
3. Effect of Dismissal and Restoration on Interlocutory Orders:
The Court reviewed various precedents to address the effect of dismissal and subsequent restoration of a suit on interlocutory orders. It referred to cases like Bankim Chandra vs. Chandi Prasad, Tavvala Veeraswamy vs. Pulim Ramanna, and others, which dealt with the revival of ancillary orders upon restoration of a suit. The Court observed that while ancillary orders like stay orders may automatically revive, supplemental orders like injunctions do not. The Court emphasized that the statutory scheme under the Code of Civil Procedure does not provide for automatic revival of supplemental orders, and a fresh order is necessary upon restoration of the suit.
Supplemental Proceedings and Their Impact:
The judgment elaborated on the nature and impact of supplemental proceedings, including orders of attachment before judgment, temporary injunctions, and appointment of receivers. The Court noted that these orders, being supplemental, have significant consequences and can affect the rights of parties and third parties. Therefore, they require specific judicial consideration and cannot be automatically revived upon the restoration of a suit.
Judicial Precedents and Interpretation:
The Court discussed various judicial precedents, including decisions from the Patna High Court, Madras High Court, Mysore High Court, and others, to illustrate the differing views on the revival of interlocutory orders. The judgment highlighted the importance of interpreting statutory provisions in a manner that preserves the rights of parties and ensures justice. The Court concluded that supplemental orders, due to their nature and impact, require explicit judicial orders for revival upon restoration of a suit.
Conclusion and Directions:
The Supreme Court concluded that the interim order of injunction did not revive upon the restoration of the suit. The Court advised that, to avoid confusion, courts should explicitly state whether interlocutory orders are vacated upon dismissal of a suit and whether they are revived upon restoration. The judgment set aside the impugned order and allowed the appeal, emphasizing the need for express judicial orders for the revival of supplemental proceedings.
Dissenting Opinion:
One judge dissented, disagreeing with the majority opinion that the interim order of injunction did not revive upon restoration of the suit. The dissenting judge emphasized the need for specific judicial orders to clarify the status of interlocutory orders upon restoration of a suit.
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2004 (4) TMI 570
Issues Involved:
1. Interim Injunction
2. Infringement of Copyright
3. Passing Off
4. Jurisdiction
5. Delay and Acquiescence
6. Trans-Border Reputation
7. Validity of Power of Attorney
Issue-wise Detailed Analysis:
1. Interim Injunction:
The appellant sought interim injunctions to restrain the respondents from infringing on their copyright and passing off their goods as those of the appellant. The learned Single Judge initially vacated the interim injunctions, but the appellate court reinstated them, highlighting that the appellant had established a prima facie case of infringement and passing off. The court noted that the respondents had slavishly copied the appellant's trademark, color scheme, get-up, and layout, which could mislead consumers.
2. Infringement of Copyright:
The appellant claimed infringement of their copyright in the artistic work of the JOLEN crme bleach carton and container. The court found that the respondents had copied the appellant's artistic work in its entirety, including the distinctive style in which JOLEN is written. The court held that the appellant, having established prior use and ownership of the copyright, was entitled to protection against infringement.
3. Passing Off:
The appellant argued that the respondents were passing off their goods as those of the appellant by using an identical trademark and packaging. The court agreed, noting that the respondents' use of the JOLEN trademark and similar packaging was likely to deceive consumers. The court emphasized that passing off is an action to protect the reputation and goodwill of a trader, and the appellant had established a prima facie case of passing off.
4. Jurisdiction:
The respondents challenged the jurisdiction of the court, arguing that the appellant's goods were not marketed in India through official channels. The court rejected this argument, holding that advertisements in international magazines with circulation in India and the availability of the appellant's goods in India through non-official sources were sufficient to confer jurisdiction. The court also noted that the appellant had produced evidence of sales in Chennai, within the court's jurisdiction.
5. Delay and Acquiescence:
The respondents contended that the appellant was guilty of delay and acquiescence, having known about the respondents' use of the trademark since 1985. The court held that mere delay in bringing an action does not defeat the grant of an injunction in cases of trademark or copyright infringement. The court found that the appellant had been actively pursuing legal remedies and was not guilty of acquiescence.
6. Trans-Border Reputation:
The appellant claimed that their trademark JOLEN had trans-border reputation, which extended to India. The court agreed, citing advertisements in international magazines with circulation in India and the availability of the appellant's goods in India. The court held that the appellant had established a prima facie case of trans-border reputation, and the respondents' use of the JOLEN trademark was likely to mislead consumers.
7. Validity of Power of Attorney:
The respondents challenged the validity of the Power of Attorney executed in favor of Arulselvan, arguing that it was not properly stamped and that Arulselvan, being an advocate, should not act as a Power of Attorney. The court rejected these arguments, finding that the original Power of Attorney was duly stamped and validated. The court also held that an advocate could act as a Power of Attorney, provided there was no conflict of interest.
Conclusion:
The appellate court allowed the appeals, reinstating the interim injunctions against the respondents for infringement of copyright and passing off. The court held that the appellant had established a prima facie case, and the balance of convenience was in their favor. The court also found that the appellant had trans-border reputation and that the jurisdiction of the court was properly invoked. The court directed that the interim injunction be suspended for ten weeks to allow the respondents to sell off their existing stock, subject to certain conditions.
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2004 (4) TMI 569
Benefit of Cenvat/Modvat credit - non-excisable sulphur-di-oxide - manufacture of dutiable copper anodes - by-product/waste can be called as a final product or by-product - Whether the final product manufactured by the assessee was cleared on payment of duty - Whether copper concentrate could be called as a common input for the manufacture of dutiable copper anodes and the by-products, such as sulphuric acid and phosphoric acid - Applicability of Rule 57C vis-a-vis Notification No. 180/88 - HELD THAT:- As noted, in the present case, the final product manufactured by the assessee is copper anode which is cleared on payment of duty only and no part of copper anode is exempted. Sulphuric acid is a by-product manufactured out of the waste emerging during manufacture of the final product viz. copper anode. Phosphoric acid is manufactured by using sulphuric acid and even these by-products are also cleared on payment of duty except a small portion which is cleared as exempted by observing the conditions in Chapter X Procedure, etc. We have already held above that Rule 57D is applicable to the present case. We also note that even in accordance with Rule 57CC the manufacturer is required to maintain separate account only in a case where a manufacturer is engaged in the manufacture of any final product which is chargeable to duty as well as in any other final product (emphasis supplied by us) which is not chargeable to duty and in case he does not do so, he is required to pay an amount equal to 8% of the price payable on the goods.
In the present case the assessee has cleared the final product viz. copper anode on payment of duty and no other final product emerged and sulphuric acid was a by-product as admitted by the revenue vide para 34 of the Order-in-Original and also in the grounds taken in the revenue appeals. Sulphur-di-oxide was also a by-product as admitted by the revenue vide para 36 of the Order-in-original and even the by-products such as sulphuric acid and phosphoric acid have also been cleared on payment of duty except a small portion cleared under Chapter X, etc., for manufacture of fertilisers. We are, therefore, of the considered opinion that there is no force in the contention of the Revenue that the assessee is required to pay 8% of sale price as noted above.
In the case CCE v. Ashok Iron and Steel Fabricators [2002 (1) TMI 91 - CEGAT, NEW DELHI], it was held by the Larger Bench in this case that credit is not to be reversed when subsequently final product is exempted from duty, credit having been taken validly and its benefit being available to manufacturer without any limitation in time. This decision is relevant to the present case inasmuch as in the present case the final product is cleared on payment of duty and even the major portion of the by-products are cleared on payment of duty except a small portion, cleared as exempted product without payment of duty. In the case of Raghuvir (India) Ltd. v. CCE, Delhi, [2002 (1) TMI 92 - CEGAT, NEW DELHI], it was held that credit taken and utilised at a time when final product was dutiable, subsequent exemption of final product is not a reason for reversal of credit.
We are also of the view that no reliance ought to have been placed by the Commissioner to Board Circular No. F No. 267/12/2001-CX, dated 28-1-2002. Through the said circular, Board had clarified that Rule 57D will not apply since sulphur-di-oxide has been subjected to further process to manufacture sulphuric acid and phosphoric acid both of which are dutiable. This Circular of the Board, in our view, cannot be applied to the facts of the present case for the following reasons:
The Board circular is dated 28-1-2002 whereas the decision in the case of Aarti Drugs [2001 (4) TMI 146 - CEGAT, MUMBAI] was rendered as early as 18-4-2001. Board circular has not been taken into consideration the prevailing judicial ruling on the subject and the clarification is not based on any Court rulings.
It is well settled that Circulars of Board cannot be relied upon and are not maintainable if the same are contrary to judicial decisions and precedence. The Hon’ble Madras High Court in the case of Pioneer Miyagi Chemicals v. CBEC,[1999 (11) TMI 79 - HIGH COURT OF JUDICATURE AT MADRAS] has held that Circulars issued by the Board which runs counter to judicial pronouncements are not valid and sustainable. The Hon’ble Delhi High Court of Delhi in the case of Kissan Chemicals v. Union of India,[1996 (5) TMI 91 - HIGH COURT OF DELHI AT DELHI] has held that Circular u/s 327B cannot be issued contrary to the decision of the Tribunal. The Tribunal in the case of CCE v. Bata India Limited,[2000 (3) TMI 819 - CEGAT, KOLKATA] have held that quasi judicial authorities are to decide matters independently and are statutorily protected from such instructions and can follow judgments of appellate forum instead of following such instructions.
Conclusion: The order of the Commissioner was set aside, and the appeals of the assessee-appellants were allowed. The appeals filed by the Revenue were dismissed. The Tribunal upheld that Rule 57D applies, and the assessee is not required to pay 8% of the sale price under Rule 57CC.
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2004 (4) TMI 568
Issues Involved:
1. Classification of "Shrinkkomp" as "cement" under entry 7 of Part "C" of the Second Schedule to the Karnataka Sales Tax Act, 1957.
2. Inclusion of the cost of packing material, specified and charged separately, in the total turnover for tax under section 6B of the Act.
Detailed Analysis:
Issue 1: Classification of "Shrinkkomp" as "Cement"
The primary question was whether "Shrinkkomp," a grouting material manufactured by the petitioner, should be classified as "cement" under entry 7 of Part "C" of the Second Schedule to the Karnataka Sales Tax Act, 1957, thereby attracting a single point tax at 13%.
The petitioner argued that "Shrinkkomp" is distinct from cement, highlighting differences in composition and usage. However, the department contended that "Shrinkkomp" is essentially a special quality cement, used for specific purposes such as grouting, and should be classified as cement. The court noted that the term "cement" covers a wide variety of binding materials, including portland cement, slag cement, high aluminium cement, gypsum cement, and expansion cement. The court emphasized that assigning a specific brand name does not change the fundamental nature of the product. It concluded that "Shrinkkomp," an expanding cement used for grouting, falls under the category of cement as per entry 7 of Part "C" of the Second Schedule to the Act. Thus, it is subject to the single point tax applicable to cement.
Issue 2: Inclusion of Packing Material Costs in Total Turnover
The second issue was whether the cost of packing materials, specified and charged separately in the sales invoices, should be included in the total turnover for the purpose of levying turnover tax under section 6B of the Act.
Section 6-B of the Act stipulates that every dealer with a total turnover exceeding five lakh rupees is liable to pay turnover tax. The proviso to section 6B(1) explicitly excludes "charges for packing materials and cost of labour" from the total turnover if they are specified and charged separately. The assessing authority had included these charges in the turnover, arguing that they form an integral part of the sale price. This view was upheld by the appellate authority and the Tribunal.
However, the court clarified that section 6B is an independent charging section, and the principles of section 5, relating to sales tax, do not apply to it. The court referenced multiple decisions, including those from the Supreme Court, to assert that deductions provided in rule 6 of the Karnataka Sales Tax Rules, 1957, do not apply to section 6B. It emphasized that the proviso to section 6B(1) clearly excludes charges for packing materials specified and charged separately from the total turnover.
The court rejected the argument that section 5(3D), which deals with the tax on containers and packing materials, should influence the interpretation of section 6B. It held that section 5(3D) is inapplicable to section 6B, as the latter has a clear provision excluding packing charges from the total turnover.
Conclusion
The petitions were allowed in part. The court confirmed the Tribunal's decision to tax "Shrinkkomp" under entry 7 of Part "C" of the Second Schedule to the Act. However, it set aside the decisions of the assessing authority, appellate authority, and the Tribunal regarding the inclusion of packing material costs in the total turnover. The assessing authority was directed to reassess the turnover for the years 1989-90 and 1990-91, excluding the specified and separately charged packing material costs from the total turnover.
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